01995899
11-05-1999
Traine D. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Traine D. Smith v. United States Postal Service
01995899
November 5, 1999
Traine D. Smith, )
Appellant, )
)
v. )
) Appeal No. 01995899
William J. Henderson, ) Agency No. 1-C-191-0042-99
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD), dated July 8, 1999, dismissing four allegations from
her complaint for failure to state a claim. The Commission accepts the
appeal in accordance with EEOC Order No. 960, as amended.
Appellant filed a formal complaint, dated February 19, 1999, alleging
discrimination based on sex (female) and color. The agency defined the
allegations as follows:
On December 3, 1998, appellant's supervisor had appellant doing all
the work;
On December 4, 1998, appellant only had a fifteen minute lunch;
On December 4, 1998, appellant's supervisor told one of her co-workers
that appellant was not working hard enough unless she was picking cotton
and tying bales of hay;
On December 28, 1998, appellant tried to speak with Person A, but he
said that he did not have the time, and told appellant to make an
appointment;
On December 29, 1998, appellant approached Person A, wanting to speak
with him about an extension of employment; and Person A told appellant
that she was staying and "that's that;" and,
On December 30, 1998, Person A, Person B and appellant had a meeting
and Person A told appellant that he did not need her. Person A further
stated that " we do not run things that way here and this is not a
two-sided conversation and goodbye."
The agency issued a FAD dismissing allegations 3 - 6 for failure to
state a claim, pursuant to 29 C.F.R. �1614.107(a). The agency indicated
that appellant failed to demonstrate that she had suffered and harm or
injury from the alleged incidents. Allegations 1 and 2 were accepted
for further investigation.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In the instant case, the Commission finds that the agency properly
dismissed allegations 3, 4, 5, and 6 for failure to state a claim.
Each allegation consists of a remark or comment made by appellant's
supervisor or Person A. A review of the record indicates that no agency
action resulted from the comments. The Commission has repeatedly found
that remarks or comments unaccompanied by a concrete agency action are
not a direct and personal deprivation sufficient to render an individual
aggrieved for the purposes of Title VII. See Backo v. U.S. Postal
Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal
Service, EEOC Request No. 05940695 (February 9, 1995). Therefore,
appellant is not considered an "aggrieved employee."
Accordingly, the agency's dismissal of allegations 3 - 6 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT
IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT
HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
11/05/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations